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NATIONAL LABOR RELATIONS BOARD v. BILDISCO & BILDISCO

decided*fn*: February 22, 1984.

NATIONAL LABOR RELATIONS BOARD
v.
BILDISCO & BILDISCO, DEBTOR-IN-POSSESSION, ET AL.



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.

Rehnquist, J., delivered the opinion of the Court, in Parts I and II of which other Members joined, and in Part III of which Burger, C. J., and Powell, Stevens, and O'connor, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which White, Marshall, and Blackmun, JJ., joined, post, p. 535.

Author: Rehnquist

[ 465 U.S. Page 516]

 JUSTICE REHNQUIST delivered the opinion of the Court.

Two important and related questions are presented by these petitions for certiorari: (1) under what conditions can a Bankruptcy Court permit a debtor-in-possession to reject a collective-bargaining agreement; (2) may the National Labor Relations Board find a debtor-in-possession guilty of an unfair labor practice for unilaterally terminating or modifying a collective-bargaining agreement before rejection of that agreement has been approved by the Bankruptcy Court. We decide that the language "executory contract" in § 365(a) of the Bankruptcy Code, 11 U. S. C. § 365(a) (1982 ed.), includes within it collective-bargaining agreements subject to the National Labor Relations Act, and that the Bankruptcy Court may approve rejection of such contracts by the debtor-in-possession upon an appropriate showing. We also decide that a debtor-in-possession does not commit an unfair labor practice when, after the filing of a bankruptcy petition but before court-approved rejection of the collective-bargaining

[ 465 U.S. Page 517]

     agreement, it unilaterally modifies or terminates one or more provisions of the agreement. We therefore affirm the judgment of the Court of Appeals for the Third Circuit in these cases.

I

A

On April 14, 1980, respondent Bildisco and Bildisco (Bildisco), a New Jersey general partnership in the business of distributing building supplies, filed a voluntary petition in bankruptcy for reorganization under Chapter 11 of the Bankruptcy Code, 11 U. S. C. § 1101 et seq. (1982 ed.).*fn1 Bildisco was subsequently authorized by the Bankruptcy Court to operate the business as debtor-in-possession under 11 U. S. C. § 1107 (1982 ed.).*fn2

At the time of the filing of the petition in bankruptcy, approximately 40 to 45 percent of Bildisco's labor force was represented by Local 408 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

[ 465 U.S. Page 518]

     (Union). Bildisco had negotiated a 3-year collective-bargaining agreement with the Union that was to expire on April 30, 1982, and which expressly provided that it was binding on the parties and their successors even though bankruptcy should supervene. Beginning in January 1980, Bildisco failed to meet some of its obligations under the collective-bargaining agreement, including the payment of health and pension benefits and the remittance to the Union of dues collected under the agreement. In May 1980, Bildisco refused to pay wage increases called for in the collective-bargaining agreement.

In December 1980, Bildisco requested permission from the Bankruptcy Court, pursuant to 11 U. S. C. § 365(a) (1982 ed.),*fn3 to reject the collective-bargaining agreement. At the hearing on Bildisco's request the sole witness was one of Bildisco's general partners, who testified that rejection would save his company approximately $100,000 in 1981. The Union offered no witnesses of its own, but cross-examined the witness for Bildisco. On January 15, 1981, the Bankruptcy Court granted Bildisco permission to reject the collective-bargaining agreement and allowed the Union 30 days in which to file a claim for damages against Bildisco stemming from the rejection of the contract. The District Court upheld the order of the Bankruptcy Court, and the Union appealed to the Court of Appeals for the Third Circuit.

B

During midsummer 1980, the Union filed unfair labor practice charges with the National Labor Relations Board (Board). The General Counsel of the Board issued a complaint alleging that Bildisco had violated § 8(a)(5) and § 8(a)(1) of the National Labor Relations Act (NLRA), 29 U. S. C.

[ 465 U.S. Page 519]

     § 158(a)(5) and § 158(a)(1),*fn4 by unilaterally changing the terms of the collective-bargaining agreement, in failing to pay certain contractually mandated fringe benefits and wage increases and to remit dues to the Union. Ultimately the Board found that Bildisco had violated § 8(a)(5) and § 8(a)(1) of the NLRA by unilaterally changing the terms of the collective-bargaining agreement and by refusing to negotiate with the Union. Bildisco was ordered to make the pension, health, and welfare contributions and to remit dues to the Union, all as required under the collective-bargaining agreement. The Board petitioned the Court of Appeals for the Third Circuit to enforce its order.

C

The Court of Appeals consolidated the Union's appeal and the Board's petition for enforcement of its order. In re Bildisco, 682 F.2d 72 (1982). That court held that a collective-bargaining agreement is an executory contract subject to rejection by a debtor-in-possession under § 365(a) of the Bankruptcy Code. The authority of the debtor-in-possession to seek rejection of the collective-bargaining agreement was not qualified by the restrictions of § 8(d) of the NLRA, which established detailed guidelines for mid-term modification of collective-bargaining agreements,*fn5 because

[ 465 U.S. Page 520]

     in the court's view, the debtor-in-possession was a "new entity" not bound by the labor agreement. The Court of Appeals concluded, however, that given the favored status Congress has accorded collective-bargaining agreements, a debtor-in-possession had to meet a more stringent test than the usual "business judgment" rule to obtain rejection. The Court of Appeals accepted the standard applied by the Court of Appeals for the Second Circuit in Shopmen's Local Union No. 455 v. Kevin Steel Products, Inc., 519 F.2d 698, 707

[ 465 U.S. Page 521]

     (1975), and required the debtor-in-possession to show not only that the collective-bargaining agreement is burdensome to the estate, but also that the equities balance in favor of rejection. The case was remanded for the Bankruptcy Court's reconsideration in light of the standards enunciated.

The Court of Appeals refused to enforce the Board's order, rejecting the Board's conclusion that Bildisco, as debtor-in-possession, was the alter ego of the prepetition employer. Under the Bankruptcy Code, a debtor-in-possession was deemed a "new entity" not bound by the debtor's prior collective-bargaining agreement. Because rejection relates back to the filing of a petition, the Court of Appeals held that if Bildisco were permitted to reject the contract, the Board was precluded from premising an unfair labor practice on Bildisco's rejection of the labor contract. The Court of Appeals implied that if the Bankruptcy Court determined that the collective-bargaining agreement should not be rejected, the Board could find a violation of § 8(d) of the NLRA.

We granted certiorari to review the decision of the Court of Appeals because of the apparent conflict between that decision and the decision of the Court of Appeals for the Second Circuit in Brotherhood of Railway, Airline and Steamship Clerks v. REA Express, Inc., 523 F.2d 164, cert. denied, 423 U.S. 1017 (1975).

II

Section 365(a) of the Bankruptcy Code, 11 U. S. C. § 365(a) (1982 ed.), provides in full:

"(a) Except as provided in sections 765 and 766 of this title and in subsections (b), (c), and (d) of this section, the trustee, subject to the court's approval, may assume or reject any executory contract or unexpired lease of the debtor."

This language by its terms includes all executory contracts except those expressly exempted, and it is not disputed by the parties that an unexpired collective-bargaining

[ 465 U.S. Page 522]

     agreement is an executory contract.*fn6 Any inference that collective-bargaining agreements are not included within the general scope of § 365(a) because they differ for some purposes from ordinary contracts, see John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 550 (1964), is rebutted by the statutory design of § 365(a) and by the language of § 1167 of the Bankruptcy Code. The text of § 365(a) indicates that Congress was concerned about the scope of the debtor-in-possession's power regarding certain types of executory contracts, and purposely drafted § 365(a) to limit the debtor-in-possession's power of rejection or assumption in those circumstances.*fn7 Yet none of the express limitations on the debtor-in-possession's general power under § 365(a) apply to collective-bargaining agreements. Section 1167, in turn, expressly exempts collective-bargaining agreements subject to the Railway Labor Act, but grants no similar exemption to agreements subject to the NLRA.*fn8 Obviously, Congress

[ 465 U.S. Page 523]

     knew how to draft an exclusion for collective-bargaining agreements when it wanted to; its failure to do so in this instance indicates that Congress intended that § 365(a) apply to all collective-bargaining agreements covered by the NLRA.

None of the parties to these cases dispute the foregoing proposition. But the Board contends that the standard by which the Bankruptcy Court must judge the request of a debtor-in-possession to reject a collective-bargaining contract must be stricter than the traditional "business judgment" standard applied by the courts to authorize rejection of the ordinary executory contract. See Group of Institutional Investors v. Chicago, M., St. P. & P.R. Co., 318 U.S. 523, 550 (1943); see also In re Minges, 602 F.2d 38, 42 (CA2 1979); In re Tilco, Inc., 558 F.2d 1369, 1372 (CA10 1977). The Union also contends that the debtor-in-possession must comply with the procedural requirements of § 8(d) of the NLRA, or at a minimum, bargain to impasse before it may request the Bankruptcy Court either to assume or to reject the collective-bargaining agreement.

Although there is no indication in § 365 of the Bankruptcy Code that rejection of collective-bargaining agreements should be governed by a standard different from that governing other executory contracts, all of the Courts of Appeals which have considered the matter have concluded that the standard should be a stricter one. See In re Brada Miller Freight System, Inc., 702 F.2d 890 (CA11 1983); In re Bildisco, 682 F.2d 72 (CA3 1982); see also Local Joint Executive Board v. Hotel Circle, Inc., 613 F.2d 210 (CA9 1980)

[ 465 U.S. Page 524]

     (rejection under the Bankruptcy Act); Shopmen's Local Union No. 455 v. Kevin Steel Products, Inc., 519 F.2d 698 (CA2 1975) (same). We agree with these Courts of Appeals that because of the special nature of a collective-bargaining contract, and the consequent "law of the shop" which it creates, see John Wiley & Sons, supra; Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578-579 (1960), a somewhat stricter standard should govern the decision of the Bankruptcy Court to allow rejection of a collective-bargaining agreement.

The Union and the Board argue that in light of the special nature of rights created by labor contracts, Bildisco should not be permitted to reject the collective-bargaining agreement unless it can demonstrate that its reorganization will fail unless rejection is permitted. This very strict standard was adopted by the Second Circuit in Brotherhood of Railway, Airline and Steamship Clerks v. REA Express, Inc., 523 F.2d, at 167-169, decided under the former Bankruptcy Act three years before § 365(a) was passed by Congress. Under the canon of statutory construction that Congress is presumed to be aware of judicial interpretations of a statute, the Board argues that Congress should be presumed to have adopted the interpretation of the Second Circuit when it enacted § 365(a). See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379-382 (1982); Lorillard v. Pons, 434 U.S. 575, 580-581 (1978). The Board makes a related argument that Congress was fully aware of the strict standard for rejection established in REA Express and approved that standard when enacting § 365(a) of the Bankruptcy Code. In the legislative history accompanying § 82 of the Bankruptcy Act, a provision relating to municipal bankruptcies, the Report of the House Committee on the Judiciary referred to Kevin Steel Products, supra, and REA Express, supra, as authority for the proposition that a stricter showing than the "business judgment" test was necessary to reject a collective-bargaining agreement. See H. R. Rep.

[ 465 U.S. Page 525]

     No. 94-686, pp. 17-18 (1975). Since Congress made § 365(a) applicable to municipal bankruptcies, see 11 U. S. C. § 901(a) (1982 ed.), the Board argues that this reference to REA Express supports an inference that Congress adopted the REA Express standard for rejecting collective-bargaining agreements when it enacted § 365(a).

These arguments are wholly unconvincing. Quite simply, Kevin Steel and REA Express reflect two different formulations of a standard for rejecting collective-bargaining agreements. Congress cannot be presumed to have adopted one standard over the other without some affirmative indication of which it preferred. The reference in the House Report to Kevin Steel and REA Express also cannot be considered a congressional endorsement of the stricter standard imposed on rejection of collective-bargaining agreements by the Second Circuit in REA Express, since the Report indicates no preference for either formulation. At most, the House Report supports only an ...


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